By R. Jeffrey Smith
Washington Post Staff Writer
Friday, January 16, 2009
The struggle between the Bush administration and several nonprofit groups over the recovery of millions of missing e-mails sharpened yesterday, when a magistrate judge again demanded the collection and retention of voluminous internal White House records and other materials, days before Bush aides must depart.
In his order, Judge John M. Facciola ignored a Justice Department contention in his courtroom Wednesday that 14 million e-mails earlier reported missing have been found and would be provided to the National Archives, as required under federal law.
Instead, he criticized the Bush administration for misreading an earlier judicial order and not searching widely enough for the records, which mostly consist of e-mails transmitted to or from White House officials between 2003 and 2005.
"There is a profound social interest" in the preservation of these records, Facciola said, citing Napoleon's claim that he did not care who wrote France's laws if he could write its history.
The dispute over recovery of the missing e-mails was provoked by the disclosure four years ago that the White House, in switching to a new internal e-mail system shortly after President Bush's election, had abandoned an automatic archiving system meant to preserve all messages containing official business. Under the new system, any of the 3,000 or so regular White House employees could access e-mail storage files, enabling them to delete messages.
In a further sign of judicial concern, U.S. District Judge Colleen Kollar-Kotelly ordered the White House yesterday to continue to preserve records related to its decision-making about the e-mails.
The Justice Department, meanwhile, detailed in a court filing how it found the e-mails, and said that they had mostly been mislabeled.